HKSAR v. Lau on Shek

[English Translation – 英譯本]
HCMA 371/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 371 OF 2013

(ON APPEAL FROM FLCC NO. 140 OF 2013)

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J U D G M E N T

Introduction

1.Having heard the appeal on 11 September 2013, I adjourned the case to today for delivering judgment.  I dismiss the appeal and affirm the conviction.  The reasons for my judgment are set out below.

Background

2.The appellant LAU On Shek (the defendant at the trial) was charged with two counts of “wilful assault causing injury to a child”, contrary to section 27(1)of the Offences Against the Person Ordinance, Cap. 212 of the Laws of Hong Kong.  He pleaded not guilty to the charges and the case was tried before Mr. Cheung Kwan-ming, a Magistrate.

3.On 20 April 2013, the magistrate acquitted the appellant on the first charge but found him guilty on the second charge and imposed a fine of $3,000.

4.The appellant now lodges an appeal to this Court against the conviction.

5.Both charges alleged that the appellant, being a person who had custody, charge or care of a child under the age of 16, i.e. his daughter X, wilfully assaulted X in a manner likely to cause her unnecessary suffering or injury to her health. As to Charge (1), the defendant was charged for what he did to his daughter on a day in July 2010.  X was aged 9 then.  The particulars of Charge (2) were that on 17 June 2012, at the public light bus stand for route 64K outside the Tai Wai MTR Station, Shatin, New Territories, Hong Kong, he, being a person over the age of 16 who had the custody, charge or care of the girl X aged 11, wilfully assaulted X in a manner likely to cause X unnecessary suffering or injury to her health.

6.Mr. Billy Poon, counsel for the appellant, submitted in his skeleton submissions that in this appeal the defence did not dispute on the findings of fact by the trial magistrate, and the only ground of appeal involved the magistrate’s misinterpretation of the law relating to the charge and the application of the law to the facts of this case.

7.As to the evidence of Charge (2), the magistrate fully relied on the testimony of the girl X.  He was of the view that X’s account of what happened at the material time was very detailed.  Her testimony told the court the truth without making any exaggeration.  The magistrate found that she was honest and reliable and accepted her testimony.  On Charge 2, X said that on the day in question after she had done yachting, she went back to Tai Wai from Hang Hau by MTR.  Then the defendant (her father) rang her up and the two of them made an arrangement to wait for transport at the light bus stand for No. 64K outside the Tai Wai MTR Station back home together.  She said that when she saw the defendant, he was “very drunk”.  Then while waiting for transport, the defendant asked her what she would make for his breakfast for the following morning.  X told him that she still had nothing in her mind.  Five seconds later, the defendant asked X again what she would make for his breakfast for the following morning.  Since she still had nothing in her mind, she told the defendant the same.  Then the defendant became angry and slapped her left cheek once with his right hand.  At that time as X had already been under strong sunshine for a long time earlier on, she felt “very painful” and numb, as a result of which she was in tears.

8.In his Statement of Findings, the magistrate had a detailed discussion on the law relating to the charge.  First of all, he set out section 27(1) of the Offences Against the Person Ordinance:

“If any person over the age of 16 years who has the custody, charge or care of any child or young person under that age wilfully assaults … such child or young person in a manner likely to cause such child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement) such person shall be guilty of an offence and shall be liable – on conviction on indictment to imprisonment for 10 years … ”

(Emphasis added)

9.The magistrate cited the explanation given to the word “wilful” in Archbold Hong Kong 2013 paragraph 20-306 (page 1289) as follows:

“The word … makes it clear that any offence under section 27 requires mens rea, a state of mind on the part of the offender directed to the particular act or failure to act that constitutes the actus reus and warrants the description ‘wilful’: R v Sheppard [1981] AC 394 HL.”

10.The magistrate stated that he agreed with the case Barnes v HKSAR [2000] 3 HKLRD 279 relied on by the prosecution in which it is stated that the meaning of the word “wilfully” includes being “reckless”.

11.The magistrate pointed out that both parties agreed that intoxication was not a valid defence, and he relied on the Archbold paragraph 20-165 (page 1248):

“Assault and battery being crimes of basic intent, self-induced intoxication provides no defence and is irrelevant…”

12.The magistrate also cited the comments on the word “assault” given in the Archbold paragraph 20-307 (page 1289):

“It is clear from the case of R v Hatton [1925] 2 KB 322, CCA, that in order for an assault to fall within this section, there must be something more than a mere common assault. The section provides that not only must there be a “wilful assault” but it must also be committed “in a manner likely to cause such child or young person unnecessary suffering or injury to his health.”

13.In R v Hatton, the comment made by Lord Hewart CJ is on page 324 with the original as follows:

“The words ‘in any manner likely to cause such child unnecessary suffering or injury to his health’, clearly govern ‘wilfully assaults’. Having regard to the sentence which may be imposed for an offence against the section – namely imprisonment, with or without hard labour, for a term not exceeding two years – one sees that what is contemplated is something more than an ordinary assault. What the section contemplates is a wilful assault such as is likely to cause the child unnecessary suffering.”

14.The magistrate also relied on the judgment of Branson J in R v Whibley 26 Cr App R 184 (page 187):

“It does not appear to this Court that it is right to say that, if the circumstances are such that the child might be a little frightened or that some small mental suffering or anxiety might be caused, the case is one which comes within section 1 of the Act.”

15.The magistrate also relied on HKSAR v LEE Yim Mui, HCMA 657/2012 (21 December 2012, unreported), in which Fung J held that bruises and slight laceration over a buttock had, in law, already constituted unnecessary injury to health.

16.Furthermore, the magistrate was also of the view that the “assault” involved in the charge did not include the assault with no actual force being used.  That means actual force must be used.

17.The conclusion of the magistrate is as follows:

“62. I have in the previous paragraph found that I accepted the evidence of PW1: the defendant slapped the left cheek of PW1 once with his right hand. PW1 felt “very painful” and “numb”, as a result of which she was in tears. I found that the defendant was wilful.

63. Archbold Hong Kong 2013 paragraph 20-311 (page 1290) has the following comments on the term “assault causing unnecessary suffering or injury to health”:

‘…the suffering or injury must be something more than a slight fright or some small mental anxiety: R v Whibley 26 Cr App R 184 CCA. Direct proof that the neglect, ill-treatment, etc, did in fact, or was likely to, cause unnecessary suffering or injury to health is not required. It may be proved from the evidence of the ill-treatment or neglect, etc. R v Brenton (1890) 111 CCC Sexx Pap. 309 and see Cole v Pendleton 60 JP 359.’

64. Therefore, when the left cheek of PW1 was slapped, she felt painful and numb, as a result of which she was in tears. The only irresistible inference is that the assault committed by the defendant was likely to cause unnecessary suffering or injury to PW1’s health.

65. I found that defendant guilty on charge (2).”

(Emphasis added)

18.The law and cases on which Mr. Poon relied in support of his arguments in the appeal were nothing more than those cited by the magistrate in his Statement of Findings.  However, Mr. Poon submitted that the grounds of appeal were the magistrate’s misinterpretation of the law relating to the charge and the application of the law to the facts of this case, i.e. according to the defence, the correct interpretation of the law and its application are as follows:

(a)        The elements of the offence in the ordinance exclude common assault to which the defendant’s act of slapping can only amount; and

(b)       In the ordinance, the suffering or injury to health caused by the assault must be “unnecessary”. Whether it is “unnecessary” for the defendant, being the father of the girl, to administer slight corporal punishment for personal reasons must depend on (1) the upbringing standard of each family, which is subjective, and (2) the situation of the Chinese society in Hong Kong nowadays, which is objective.  The defence was of the view that according to the facts of the case, the corporal punishment was not “unnecessary”.

19.Mr. Poon submitted that the charge had two elements, none of which could be dispensed with:

(1) wilful assault, and

(2) assault causing “unnecessary” suffering or injury to one’s health

I agree that these two elements of the offence are required to be proven.  However, element (2) also includes the “likely-to-cause” scenario.

20.As to wilful assault, Mr. Poon also relied on the Archbold paragraph 20-307 and R v Hatton, particularly what Lord Hewart, the then Chief Justice of England, has said in that case, “what is contemplated is something more than an ordinary assault”.  Mr. Poon submitted that although the wordings used in Hatton were ordinary assault, ordinary assault and common assault carried the same meaning and his arguments were as follows:

(a) In law, the least serious type of attack is only common assault with no other category of lesser seriousness, and the view that Lord Hewart has created a new category in R v Hatton is unfounded;

(b) Ordinary assault and common assault have also been used interchangeably in judgment, see Queen v Law Ho Kwan CACC 9/1988 (4 February 1988, unreported);

(c) This is also the understanding of Archbold Hong Kong 2013 on ordinary assault.

21.I have to point out that item (b) is wrong.  The terms common assault and ordinary assault were used in the judgment of Law Ho Kwan but not interchangeably.  As to item (a), what Lord Hewart was referring to is that “wilful assault” in the English provision, which is equivalent to the statutory basis of the charge in this case, “is something more than an ordinary assault” and not creating a new category of assault. As to item (c), indeed Archbold Hong Kong 2013 seems to have treated common assault as ordinary assault.

22.In any event, Mr. Poon contended before me that common assault, which was under section 40 of the Offences Against The Person Ordinance, Cap. 212 of the Laws of Hong Kong involved in this case, was the least serious type of assault.  He put assault in order by seriousness as follows:

Provision in the Offences Against The Person Ordinance, Cap. 212	Name / Category / Degree of Harm of Assault	Maximum Penalty
Section 40	Common assault	1-year imprisonment
Section 39	Assault occasioning actual bodily harm (injury or injury mark is required)	3-year imprisonment
Section 27(1)	Wilful assault	10-year imprisonment
Section 19	Wounding or inflicting grievous bodily harm (breaking of the skin is required)	3-year imprisonment
Section 17	Wounding or striking with intent to do grievous bodily harm (serious harm is required)	Life imprisonment

23.Mr. Poon submitted that since the “wilful attack” under section 27(1) involved in this case, according to Hatton, should be more serious than ordinary assault (which is equivalent to common assault), therefore at least it had to be as serious as assault occasioning actual bodily harm under section 39, which required injury or injury mark.  On this basis, Mr. Poon submitted that the appellant in this case slapped his daughter once without causing her any injury or injury mark, and therefore it did not fulfil the element requirement of wilful attack under section 27(1) and he should not have been convicted.

24.First of all, I have to analyze Hatton in order to decide on what Lord Hewart CJ actually meant.  The English statutory provision involved in that case is equivalent to section 27(1) of the Offences Against The Person Ordinance, Cap. 212, which is the main statutory basis of the charge in this case.  The evidence in that case mainly came from a 11-year old girl, who said that on the day of the offence, her stepfather (the defendant) committed an indecent act at home but not against her.  When she saw that, she screamed and her stepfather put his hand over her mouth to prevent her screaming.  The stepfather denied this allegation and testified on oath that at that time he was not present at the scene.  At trial, the judge had this to say when summing up the case to the jury:

“The prisoner is charged with assaulting this little girl in a manner likely to cause her unnecessary suffering. There is, and can be no dispute, if the facts are anything like what is sworn to by that little girl, that the prisoner did assault her in a manner likely to cause her unnecessary suffering; therefore the only question you need seriously to consider is whether the prisoner has been proved beyond reasonable doubt to have committed this offence that night, behaved in the disgraceful way of which we have heard, or whether you think the little girl might have made a mistake, or manufactured this story.”

25.The case was appealed to the Court of Criminal Appeal.  Lord Hewart CJ pointed out that the trial judge, other than making the above remarks, did not give the jury any directions on law in his summing-up as to the interpretation of the statutory basis of the charge.  After giving the remarks quoted in paragraph 13 above, His Lordship continued,

“It was, therefore, extremely important that the jury should be fully directed as to the meaning of s. 12, inasmuch as the assault which was relied upon consisted in this, and in this only, that the appellant was said to have put his hand over the child’s mouth to prevent her screaming. But it is quite obvious, when one looks at the case as a whole, that the jury might well think that that which was done in the presence of the child, if it was done, was likely to cause, if not suffering, at any rate no little agitation of mind, astonishment and disgust. That, however, is not an assault within the meaning of the section. To convict the appellant under the section it was necessary to show that he committed a wilful assault in a manner likely to cause unnecessary suffering. The summing up omitted to direct the jury’s attention to the real point in the case, and indeed its terms were such as might easily divert their minds from the real point.”

26.In a nutshell, what Lord Hewart meant is that the “attack” to which the case referred was the defendant’s act of putting his hand over the child’s mouth to prevent her screaming.  But it is quite obvious, when one looks at the case as a whole, that the jury might think that if the defendant “did such act (i.e. the indecent act) in the presence of the child”, it was likely to cause, if not suffering, at least agitation of mind, astonishment and disgust.  However, the latter was not an “assault” within the meaning of the section.  The trial judge, in the summing-up to the jury, omitted to specify this real point in the case.  So the jury would be misled very easily into diverting their attention from this real point.

27.Under the above analysis, obviously what Lord Hewart meant was that the indecent act of the defendant of that case could not constitute the wilful assault under the statutory provision.  He did not mean that the act of putting a hand over the girl’s mouth to prevent her screaming could not constitute the wilful assault under the statutory provision because he said that this was the real point in the case. The Chief Justice only meant that ordinary assault was not within the meaning of wilful assault in the section.  Ordinary assault refers to usual or general assault.  Of course it can also be interpreted as common or normal assault. From the circumstances of that case, in my judgment, the meaning of the word “ordinary” used by the Chief Justice may be the same as common in common assault. However, ordinary is just an ordinary word and it does not refer to the statutory type of common assault (like the one under section 40 of the Offences Against The Person Ordinance).  His Lordship expressly stated that the indecent act of the defendant was not an assault within the section.  Therefore what he referred to as something more than an ordinary assault may be something more than that indecent act, and the demarcation line seemed to be that there must be an act of using violence with body contact, which the magistrate and the respondent thought to be the case.  However, the so-called something more than an ordinary assault by His Lordship may have nothing to do with the lacking of violence and body contact by the indecent act and the demarcation line is whether it is wilful or not.  In fact, we do not need any help from elsewhere. His Lordship has expressly stated it in two places in his judgment (see the citations under paragraphs 13 and 25 above):

“What the section contemplates is a wilful assault such as is likely to cause the child unnecessary suffering.”

“To convict the appellant under the section it was necessary to show that he committed a wilful assault in a manner likely to cause unnecessary suffering.”

What is involved in the statutory basis of the charge is a wilful assault in a manner likely to cause unnecessary suffering.

28.In Lee Yim Mui stated above, when dealing with the statutory basis of the charge which was the same as the one in this case, Fung J said,

“No matter her (the defendant’s) intention was to correct PW1’s lies or other acts, it was still wilful assault because it was neither out of accident nor negligence.”

29.One can see from here that the “wilful assault” in the present case refers to the assault which is neither out of accident nor negligence, as what the magistrate has pointed out in this case that the assault was a deliberate and not an accidental or a negligent act.  I agree with the views of Lord Hewart, Fung J and the magistrate, which are in line with each other.

30.I do not agree with the submission of Mr. Poon that whether an attack was the “wilful attack” within section 27(1) involved in this case depended on whether it caused injury or injury mark.

31.In paragraph 62 of his Statement of Findings (see the extract under paragraph 17 above), the magistrate found that the defendant’s act was deliberate.  So the ground based on the interpretation of “wilful attack” fails.

32.As to assault causing “unnecessary” suffering or injury to health, which is the other element of the offence, if I do not misunderstand Mr. Poon, the crust of his ground of appeal is the last two paragraphs of his skeleton submissions as follows:

“9. The Defence does not have any authority to provide for the interpretation of the word “unnecessary” in the above statute. However, our position is that whether the common assault which takes place during the custody of a child or young person is “unnecessary” has to depend on the objective social environment and the subjective family education. Otherwise it will end up in substantial number of unreasonable situations.

10.    The said ordinance has to be applied in view of public policy.  The Defence position is that unless for obvious and necessary facts, the court should not overstep the authority of the family in internal custody.”

33.Mr. Poon did not submit that there was any error in the findings of the magistrate.  The crust of his ground above seems to be that the magistrate did not understand the word “unnecessary”.

34.One has to bear in mind that the magistrate did not accept the explanation given by the appellant, which was that when the two of them were waiting for transport, X leaned against the appellant and closed her eyes to rest.  When the transport arrived, the appellant gave her a pat on her cheek to wake her up.  However, the magistrate rejected this piece of evidence.  Therefore, in the case there is no evidence on family education from the subjective point of view of the defence.  Furthermore, when looking at this case from the objective social environment, in my judgment, the purpose and meaning for a father making arrangement to wait for transport together with his daughter back home is obviously to enhance parent-child relationship by sparing more time to stay with and accompany each other in order to bring about the relationship of an affectionate father and a filial child, which is something good in normal human relations.  However, according to the evidence given by X, when she saw her father, he, who was the appellant, was “very seriously drunk, very drunk”.  In the objective social environment, no matter the issue of breakfast preparation existed or not, the appellant might still slap his daughter hard because of his serious drunkenness.  This act has badly destroyed the purpose and meaning for making arrangement to wait for transport together with the daughter back home, causing her to be traumatized. In my judgment, no doubt it brought to the daughter “unnecessary” suffering, at least likely to bring her unnecessary suffering.

35.In my judgment, the law and authority cited by the magistrate are applicable to this case and he did not make any misinterpretation.  When the facts of this case are assessed by the objective social environment and subjective family education criterion raised by the defence, the conviction imposed by the magistrate is also reasonable and sensible without anything being unsafe or unsatisfactory.

Conclusion

36.Based on the aforesaid reasons, the appeal is dismissed and the conviction is affirmed.

Billy Poon,instructed by Tam & Partners Solicitors, for the Appellant

Rosa Lo, Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.